States' Rights

By Michael F. Holt, Ph.D.

From the writing of the Constitution until well after the Civil War, the proper allocation of jurisdictional authority between state and national governments in the American federal system was a perennial subject of dispute. States' Rights refers to a doctrine embraced by opponents of a strong and vigorous national government. Primarily espoused by Southerners and Democratic foes of National Republicans and Whigs, states' rights formally encompassed the following tenets. First, state governments antedated and created the national government, and at the Constitutional Convention of 1787 they delegated to the new national government only a limited set of powers. Second, all other governmental powers, unless specifically prohibited by the Constitution, were reserved to the states. Third, any attempt by the national government to do anything not explicitly authorized in the Constitution was an unconstitutional infringement on the jurisdiction of states and a step toward centralization or consolidation that would endanger the states' autonomy and the people's political liberty. In short, states' rights advocates, in sharp distinction from Whigs who favored cooperation between state and national governments to achieve beneficial ends, tended to see the balance of power within the federal system as a zero-sum gain. An increase of national power automatically meant a reduction of state power. Fourth, the "necessary and proper" clause with regard to the powers of Congress must be strictly interpreted or "constructed" to stop Congress from doing anything that the wording of the Constitution did not explicitly authorize. Fifth, although only some Southerners went this far, since the national government was created by the states, states could withdraw from that compact any time they wished. Secession, in short, was the ultimate states' right.

States' rights and strict construction were often used as interchangeable concepts to rail against nationalistic policies as unconstitutional usurpations of state power. John Tyler, for example, vetoed two national bank bills passed by congressional Whigs on the grounds that their provisions allowing the establishment of branches within states without the prior permission of state governments was a violation of state rights. And Henry Clay advocated the distribution of federal land revenues to the states to allay concerns that federal subsidies to internal improvements were unconstitutional enhancements of national power at the expense of states. But states' rights doctrine was also asserted in a more aggressive sense, especially by Southerners, to flout the clear wording of the Constitution that national laws and treaties were the "supreme law of the land." Thus southern states passed laws extending their jurisdiction over Indian lands despite the treaties that granted Indians autonomy over them, jailing black seamen with foreign citizenship in violation of treaties, and barring abolitionist materials from the U.S. mail with the justification that the police powers of state governments were in fact superior to national power. Ironically, northern Republicans in some states, notably Wisconsin, embraced that same doctrine for antislavery purposes in the 1850s by passing personal liberty laws that effectively nullified the 1850 Fugitive Slave Act.

If states' rights doctrine was asserted primarily by opponents of a strong national government and southern defenders of slavery, in sum, it was malleable. Who used it depended largely on what action or threatened action by the national government people dsought to resist.